As soon as the U.S. Sentencing Commission released its new report on the effects of criminal justice legislation promoted by Jared Kushner, introduced by Republicans and signed by Donald Trump, the GOP immediately began taking credit.
Trump will undoubtedly count the report showing that the First Step Act significantly reduced the sentences of more than 1,000 federal inmates as proof that he is not a racist. He will surely say that the media hates him because the U.S. Sentencing Commission’s report (pdf) would be the news of the day if Obama did it.
The report by the U.S. Sentencing Commission revealed that 91.3 percent of the 1,051 people who received retroactive sentencing reductions due to the passage of the First Step Act were black. Republicans scheduled photo-ops with newly released prisoners. The ultra-conservative Washington Examiner called it “Kushner’s reform bill,” which “benefits blacks overwhelmingly.” A video of a formerly incarcerated man’s “thank you” to Donald Trump even went viral.
On its surface, this might seem as if Republicans finally did something to help black people, if only inadvertently. It is true that the First Step Act of 2018 was one of the biggest legislative victories for advocates of criminal justice reform in years. It is also true that the legislation was promoted by Jared Kushner and sponsored by Republican lawmakers (Rep. Doug Collins of Georgia and Sen. John Cornyn of Texas).
But upon further examination, the report shows how the criminal justice system, especially in Republican states, is stacked against black people.
In 2010, President Barack Obama signed the Fair Sentencing Act of 2010, which narrowed the gap in racially discriminatory crack vs. cocaine sentences by 82 percent. The Sentencing Commission’s report specifically examines the effects of the First Step Act that retroactively applied Obama’s 2010 law to nonviolent drug offenders who were convicted before the Fair Sentencing Act took was enacted into law.
Of the 1,051 people who applied for sentencing reductions because of this injustice:
- 91.3 percent were black, 3.8 percent were Hispanic and 4.3 percent were white, despite the fact that blacks and whites use and sell drugs at about the same rate.
- While many people blame the Clinton crime bill for mass incarceration and the crack vs. cocaine guidelines, most of the people who were released were convicted by George W. Bush’s Department of Justice.
- 62 percent of the people released because they received unequal sentences were convicted by a DOJ controlled by a Republican President. 38 percent were convicted by a Democrat-run Justice Department.
- People convicted by courts in places with high black populations (Washington DC, Alabama, Georgia, Maryland and South Carolina) received above-average sentenced reductions, which meant that they were disproportionately sentenced to longer prison terms. (No data was available for Mississippi.)
- Apparently, there wasn’t a single person in the 5 whitest states (Montana, Idaho, Wyoming, Vermont and Utah) who was over-sentenced.
Before we applaud the GOP for reducing sentencing disparities, one should understand that the provision that released these hundreds of black inmates was not included in the first draft of the First Step Act. It did not address the crack vs. cocaine disparity. It didn’t address drug sentencing. It didn’t address sentencing reform at all.
These amendments were only included when dozens of organizations like the Color of Change and the Prison Policy Initiative urged Democratic lawmakers to vote against the bill unless Republicans agreed to include prison and sentencing reform initiatives. Conservative senators eventually agreed, much to the dismay of hardcore right-wingers like Sen. Tom Cotton (R-Ark.).
To be clear, the First Step Act is a win for criminal justice reform. But the Republicans who wrote the law never meant for it to reduce the sentences of hundreds of prisoners. They never intended for it to address the racist war on drugs. Even though some people insist that we must “give the president his due,” the reason hundreds of black people have been removed from America’s system of mass incarceration is that a Democratic senator wrote a bill, a Democratic president signed it and Democrats forced Donald Trump and a Republican-controlled Congress to make it retroactive.
Nice try, though.